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Bar Council of India v. A.K. Balaji

Civil Appeal · 2018 INSC 235Decided 13 Mar 2018
Civil Appeal Nos. 7875-7879 of 2015
Justice Adarsh Kumar Goel · Justice Uday Umesh Lalit

Background

This batch of appeals arose from conflicting High Court rulings on whether foreign law firms and lawyers could practice in India. The Madras High Court (in A.K. Balaji's writ petition, which had impleaded 32 foreign law firms) had held that foreign lawyers could not practice law in India but could visit on a "fly in and fly out" basis for legal advice and could conduct international arbitration, while the Bombay High Court had separately held that the RBI was wrong to let foreign law firms open liaison offices and that "practice of law" covered non-litigious work too. The Bar Council of India, along with associations of Indian lawyers, challenged these rulings before the Supreme Court.

Decision Breakdown

The Supreme Court held that the practice of law includes both litigation and non-litigation work (such as giving legal opinions, drafting documents, and participating in legal conferences), and that foreign law firms or lawyers cannot practice law in India, on either the litigation or non-litigation side, without complying with the Advocates Act and Bar Council of India Rules, affirming this part of both High Courts' rulings. However, the Court modified the Madras High Court's "fly in and fly out" finding, holding that this exemption covers only casual, non-regular visits for giving advice, whether a visit crosses into "practice" is a fact-specific question the Bar Council of India can determine, and the Bar Council/Union Government may frame rules on this. Similarly, the Court held there is no absolute right for foreign lawyers to conduct arbitration in India, but they may do so where institutional arbitration rules or the Arbitration Act's provisions permit it, subject to India's professional code of conduct. On BPO companies, the Court held their regulatory status depends on the actual substance of their services, not merely their label: if those services amount in substance to legal practice, the Advocates Act applies regardless of what the company calls itself.

Lesson Learnt

Foreign law firms and lawyers cannot set up practice in India, litigation or non-litigation, without following India's own regulatory framework for advocates, though occasional, non-regular visits purely to advise on foreign law remain permitted; and a business cannot escape India's legal-practice rules simply by labelling itself something else (like a BPO) if what it actually does amounts to practicing law.

Official source (sci.gov.in)View Judgment (PDF)

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